February 19, 2023 / by emptywheel

 

Where Alina Habba Didn’t Personally Search

Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.

Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.

But it wasn’t.

Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.

But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.

The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.

5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:

a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.

b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.

c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena

[snip]

It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.

Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.

Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.

Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.

f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.

So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.

And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.

But even the two properties Habba did search include gaps.

b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.

But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.

While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.

But there’s no way Habba would have found most documents, because most documents were still in that storage room.

They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.

Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.

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Originally Posted @ https://www.emptywheel.net/2023/02/19/where-alina-habba-didnt-personally-search/